A. Model I: Whig constitutionalism

Having sketched the four models in the abstract, let us turn to more historically concrete versions of the models as they emerged in the theory of particular thinkers and actual practice. The first proto-modern constitutionalists, the English Whigs, arose in England in the seventeenth century as part of the massive political conflicts that followed in the wake of the Reformation. The Whigs emerged in the context of a struggle with the reigning English kings—the Stuart line of kings—over the nature of the constitution. The Whigs thought the Stuarts were attempting to transform what had been a limited monarchy into an absolutist one on the model of France under Louis XIV. The Whigs rose up to defend traditional limitations but ended up transforming them into something like modern constitutionalism. The traditional limits on the monarchy had existed, for the most part, as matters of custom. Accordingly, the exact character of the limits was unclear. The source or authority of the limits was equally unclear, allowing the kings to declare that the limits were merely self-imposed by the monarchy and thus could be disregarded by the monarchs as well.

The Whigs, centered in Parliament, tried to make the limits more explicit, concrete, and secure. They promulgated various written statements containing limitations on the crown. Their notion of constitutional limitations was very rigid and directed exclusively against the monarchy. They tried to set out stringent limitations from which there were to be no exceptions. This line of constitutionalism was carried over into America by the enemies of the proposed U.S. Constitution, the Antifederalists, who feared and distrusted executive power as the earlier Whigs had, and thus sought a constitution with greatly truncated powers, especially with respect to the executive. The Whigs and the Antifederalists, however, were not alert to the dangers posed by the very idea of constitutionalism.

In the case of the English Whigs, the commitment to Model I constitutionalism was probably facilitated by the continued presence of the king in the constitution, whose powers remained substantial, despite Whig efforts to limit them. In the case of the American Antifederalists, the commitment to Model I constitutionalism sprang from a number of articles of faith flowing from the American experiment in republicanism. Republican government, the Antifederalists tended to believe, would be mild and pacific. Republican political orders would pacify the domestic scene, and the distance of America from Europe, along with the military capacity of citizen militias, would suffice to keep Americans safe from foreign threats.

In any case, the Antifederalists clearly (and the Whigs somewhat more ambiguously) were instances of Model I constitutionalism. They favored strictly defined limitations on all governmental power and were particularly hostile to executive power. Adherents of the other three models saw them as “naïve constitutionalists,” for they did not provide for the kinds of emergencies that cannot be definitively abolished from political life.

B. Model II: Lockean and Jeffersonian constitutionalism

The American Founders, those who framed the Constitution, were not “naïve constitutionalists” of the Model I type. They were heavily influenced in their constitutionalisms by theoretical and practical developments in Europe, only one of which we can pause to discuss. It is well known that John Locke was an immense influence on American political thought and action leading up to the American Revolution. His constitutional theorizing, though to some degree superseded for the Americans by that of the French philosopher Montesquieu in his On the Spirit of the Laws (1748), was also an important influence on the body of thought in which Model II constitutional theory first arose.

Locke's version of constitutionalism contained many of the elements we associate with the earlier Whig constitutionalism: concern to limit the ends and powers of government; an attempt especially to limit the monarchy; and a parallel concern to elevate the legislative assembly to a position of preeminence. Thus, for Locke, the monarch becomes merely “the executive head,” that is, the wielder of something called the executive power. The king is thus not sovereign. Supremacy belongs more to the legislature, and the executive is only the agency that executes the laws made by the legislature.Footnote ¹⁰

Locke, moreover, strengthened the Whig position by attaching it to a new philosophy of politics, according to which human beings start out with rights in a state of equality with each other and institute government (via a social contract or via consent) in order to protect their preexisting rights. In this way, Locke made the notion of limited government much more coherent than the naïve Whig constitutionalists had done.

Although Locke incorporated many of the concerns of Whig constitutionalism, he also went substantially beyond and against the Whigs.Footnote ¹¹ This further dimension of Locke's constitutionalism is especially visible in two places in his political philosophy where the executive—the transformed version of the king, who is to be limited and made subordinate to the legislature—escapes from his limits and, like Clark Kent in the fabled telephone booth, bursts forth from his trammeled role into a far more powerful and thus formidable figure.

The first place where the Super-executive appears in Locke is in his treatment of the differences between governmental powers exercised within a society and powers exercised outside it or vis-à-vis other states. This latter power he calls the “federative power,” and it includes such things as “the power of war and peace, leagues and alliances, and all the transactions with all persons and communities [outside] the commonwealth.”Footnote ¹² The federative power, unlike the executive power, is not derived from a transfer of the rights and powers of the subjects and citizens, but inheres in the state as a state—existing in a state of nature with other states. That means that juridically the federative power is not subject to the same limitations as the executive power. Yet the two powers, different in origin and nature as they are, must be united in the same hands. Moreover, Locke says portentously that “though the well or ill management of [the federative power] be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing positive laws, than the executive [power]; and so must necessarily be left to the prudence and wisdom of those in whose hands it is in, to be managed [by them] for the public good.”Footnote ¹³ That is to say, the federative power rightly escapes whatever legal or constitutional limits a constitutionalist order would seek to impose on the executive. The federative power is, in effect, outside the constitution.

A second place where the Super-executive appears in Locke is in his recognition of “prerogative,” an executive power that can be used even in domestic affairs. Prerogative is a power “to act according to discretion, for the public good.”Footnote ¹⁴ This power is necessary because emergencies or unexpected circumstances arise, requiring rapid response, and the legislature, being large and often not in session, cannot respond with the necessary “dispatch.”Footnote ¹⁵ Locke understood that this prerogative power was both necessary and dangerous.

Locke thus stands as a paradigmatic Model II constitutionalist. He clearly recognizes that foreign relations require something other than stringent legalism, and, moreover, that emergency or extraordinary situations arise, which tend to escape the boundaries of ordinary law. It is the executive, acting outside and even at times against the law, who is to cope with foreign affairs and emergencies. Despite Schmitt's attempt to brand Locke as the father of the liberal constitutionalism that he (Schmitt) rejected, it is clear that this is not an accurate picture of Locke's own constitutional theory. Locke, of course, did not mean to make a simple assertion of extraconstitutional executive supremacy. Ultimately, the legislature has the right, he says, to reassert its supremacy and to judge whether the executive has indeed used his extraconstitutional power for the public good. If the legislative and the executive powers disagree, Locke concludes that “the people shall be judge”—that in the final analysis there is indeed no legal rule that can be relied on to settle public life once and for all. In opening up the appeal to the sovereign people, Locke is, at the end of the day, recognizing something like what Schmitt does in his argument for the “exception”: the appeal to the sovereign.Footnote ¹⁶ Yet Locke, more than Schmitt, attempts to maintain the commitment to constitutionalism despite the incompleteness of all constitutions.

Locke was a great inspiration for the American founders, but by the time they made their constitution, the idea of modern constitutionalism had evolved beyond him in two important respects. First, the American Constitution was the kind of written document we now think of. Second, the Americans had dropped the distinction between executive and federative powers, and had in fact allocated elsewhere some of the powers Locke identified as federative. Thus, most importantly, the power of war and peace was granted to Congress. Moreover, the treaty power was shared between the executive and the Senate.

Despite these changes, one of the American constitutional models—Jeffersonian constitutionalism—remained quite close to the Lockean prototype. Model II constitutionalism, it will be recalled, combines strict-construction constitutionalism with extraconstitutional appeals to the executive to meet needs that transcend the constitution. In order to systematize the comparison of the different constitutional models, one might identify a number of variables common to each to see where and how they differ from each other. Thus, Thomas Jefferson's constitutional model has six features: (1) strict construction of the constitutional powers; (2) the affirmation of firm modes of enforcement of strictly construed constitutional powers; (3) legalized rights protections; (4) means to enforce rights protections; (5) extraconstitutional power to deal with special situations; and (6) an executive-centered model of action in extraordinary situations.

Some of the best known elements of Jeffersonian constitutionalism relate to his concern to keep the powers of government limited, and especially to resist efforts to see them increase via constitutional construction. Thus, in his draft of the Kentucky Resolutions of 1798,Footnote ¹⁷ Jefferson affirmed that “the construction” of the “necessary and proper clause”Footnote ¹⁸ in the U.S. Constitution, as promoted by the Federalist party, “goes to the destruction of all limits prescribed to their power [i.e., the power of Congress] by the Constitution.” He thought the Hamiltonian interpretation of the clause (see below) distorted the Constitution and indeed was contrary to the nature of constitutions altogether: “words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers.”Footnote ¹⁹

Jefferson provided a yet fuller account of his theory of strict construction in his opinion on the constitutionality of a national bank. Early in 1791, Jefferson responded to President Washington's request for an opinion on the constitutional legitimacy of the proposal by his Secretary of the Treasury, Alexander Hamilton, to charter a national bank. In response, Jefferson affirmed that the constitutional system was grounded on the principle laid out in the Tenth Amendment to the Constitution: “I consider the foundation of the Constitution as laid on this ground: that ‘all powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ ”Footnote ²⁰ Jefferson's rationale for this principle of resistance to any kind of expansive reading of the powers under the Constitution was based, in turn, on his judgment that “To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power no longer susceptible of any definition.”Footnote ²¹ If the Constitution allows room for moving beyond the strict enumeration of powers, then, Jefferson feared, the entire aspiration to limit and control power that constitutes the constitutionalist impulse is mooted. Note that it is constitutionalism and not states' rights, as is often thought, that is the core of Jefferson's concern for strict construction. In the Kentucky Resolutions, he expressed his conviction that the strict boundaries of constitutional powers must be maintained through “the chains of the Constitution.”Footnote ²²

Jefferson would not leave constitutional limitations as mere declarations of principle. He also affirmed concrete constitutional mechanisms for enforcing the constitutional limitations of power. Thus, in his opinion on the constitutionality of a national bank, he appealed to “the negative [veto] of the President” as “the shield provided by the Constitution to protect against the invasions of the legislature” on the powers and rights of others.Footnote ²³ President Washington failed to follow his advice in this case and signed legislation that Jefferson believed went well beyond the bounds of the Constitution. Later, President Adams went along with the even more despised Alien and Sedition Acts of 1798. Over time, Jefferson was thus led to seek an additional check on congressional power, one that might prove more reliable than the presidential veto. By the time of the Kentucky Resolutions, he had developed his theory of state nullification. As he put it, “every state has a natural right in cases not within the compact … to nullify of their own authority all assumptions of power by others within their limits.”Footnote ²⁴

Jefferson would limit powers of government not only through his strict constructionism but also though explicit protections of individual rights. Thus, in the debate over ratification of the Constitution, he favored the inclusion of a Bill of Rights, influencing his friend James Madison to take a more positive stand on the issue. Madison, in turn, was the leading figure in pushing the Bill of Rights through Congress en route to establishing it as a series of amendments to the Constitution. As Jefferson said in one of his letters to Madison: “A bill of rights is what the people are entitled to against every government on earth … and what no government should refuse, or rest on inference.”Footnote ²⁵ A bill of rights is a commitment to limit governmental power on behalf of the rights of individuals.

The protections of individual rights that Jefferson wished to incorporate in the Constitution via the Bill of Rights would also have an explicit means of enforcement. Perhaps surprisingly, given his well-known doubts about judicial review (and, at times, his hostility toward the concept), it was to the judiciary that Jefferson looked for the concrete protection of rights.Footnote ²⁶

In his concern that the government not step into that “boundless sea of power,” he was especially worried about the executive branch. For example, he wrote in a 1787 letter to Madison that he was opposed to the absence of a limit on the number of terms a president could serve under the proposed Constitution, because he was “not a friend to a very energetic government,” which, he thought, was “always oppressive.”Footnote ²⁷ As James Read well said, “Jefferson was faithful to the fear-of-power element in the English oppositional Whig tradition.”Footnote ²⁸

Yet Jefferson was not a Model I constitutionalist. As Jeremy Bailey shows very clearly in his thorough survey of Jefferson's thoughts about executive power and his actions as governor of Virginia and then president of the United States: “Throughout his career, he attempted to preserve the law by interpreting it strictly while at the same time explaining that a strict construction of the law would require that the law be set aside during times of necessity or emergency on the condition that the executive submit to the political judgment by announcing his extralegal activity.”Footnote ²⁹ It is the space that Jefferson regularly made for action outside the law and the Constitution that makes him a Model II constitutionalist like Locke, and not a Model I constitutionalist like the Whigs.

One of the major trials—and achievements—of Jefferson's presidency was the Louisiana Purchase of 1803, about which he had many constitutional qualms: “Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.” Of two possible interpretations of the text, he said, he would always “prefer that which is safe and precise.”Footnote ³⁰ Thus, Jefferson reaffirmed his commitment to stringent and narrow interpretations of the grants of power in the Constitution, especially of grants to the executive. At first he even thought that a constitutional amendment would be required to allow the Louisiana Purchase, but when he became convinced that delay might endanger the transaction, he decided to forgo the amendment and instead proceed as necessity seemed to him to dictate. He looked to Senate ratification and House appropriation of the funds for the purchase as legislative ratifications of the extraconstitutional action.

He stated his general principles of action later when an admirer wrote to him in the years immediately following his presidency wishing to know “whether circumstances do not sometimes occur, which make it a duty” to go beyond the law of the Constitution. Jefferson thought the answer easy in principle, though sometimes “embarrassing” in practice. It is a high duty for officials to obey the law, but it is not their highest duty: “the laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us: thus absurdly sacrificing the end to the means.”Footnote ³¹ This “higher law” is not for everyone, however. It is not for persons charged with “petty duties,” but for those with great duties, especially the president. Jefferson's position is thus very close to Locke's: the Constitution should be written for safe times and ordinary circumstances. It should bind power closely. But Jefferson knew that what works in ordinary times may not suffice for extraordinary times. Nevertheless, extraordinary needs should not infect the principles of governance for ordinary times. Yet when the extraordinary did occur, Jefferson believed it had to be met—by recourse to extralegal action by the agent best able to so act: the president.

C. Model III: Hamiltonian constitutionalism

Models III and IV differ from Models I and II in rejecting the strict constructionism of the latter two. They also differ from Jefferson's Model II constitutionalism in rejecting his willingness to supplement a strictly construed constitution with extraconstitutional action.

We can define Hamiltonian constitutionalism along the same set of six variables that we have used for Jefferson, but in this case it is best to begin with the Jeffersonian affirmation of a strong extraconstitutional dimension, for Model III constitutionalism is shaped to a very significant extent by the rejection of that Lockean-Jeffersonian feature of Model II. Hamilton thought Model II made no sense: it violated “axioms as simple as they are universal: the means ought to be proportioned to the end; the persons from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained.”Footnote ³² Jefferson himself conceded that the ends of political life outstripped the constitutional means of his brand of constitutionalism. On Hamilton's view, the powers required to deal with the kinds of extraordinary necessities Jefferson conceded could arise must be contained in the Constitution itself, not in some extraconstitutional no-man's land, where every use of them is an action against the Constitution. Thus, Hamilton necessarily developed an approach to constitutional construction very different from Jefferson's.

Hamilton's principle was intended to obviate the need implied by Jefferson's principle: the need to go outside the Constitution. If one is to remain within the Constitution, then the Constitution must be capable of being read capaciously in order to find within it the extraordinary powers that the “state of exception” may require. Thus, Hamilton rejected Jefferson's strict constructionism. He voiced his theory, as had Jefferson, in the context of the debate over the establishment of a national bank, and on other occasions as well.

He took a much a larger view of the Constitution than Jefferson did. Although the constitutional debate was complicated, we may safely focus attention on the way Hamilton read the “necessary and proper” clause of Article I, section 8: “Congress shall have the power … to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested in the government of the United States, or in any department thereof.” Here clearly is an explicit grant of power to go beyond the explicitly granted powers. But how far beyond? In keeping with his understanding of the character of constitutionalism, Jefferson nearly read this clause out of the Constitution—for, as he saw it, a broader reading threatened to propel the government out into that “boundless sea of power” he so feared. “Necessary,” he concluded, must mean something stricter than convenient or conducive to, “for there is not one [nonenumerated power] which ingenuity may not torture into a convenience in some instance or other to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power … of instituting a Congress with power to do whatever would be for the public good of the United States; and as they would be the sole judge of the good or evil it would be also a power to do whatever evil they please.”Footnote ³³ Jefferson rejected “convenient” and like terms and instead interpreted “necessary” very strictly: “Nothing but a necessity invincible by any other means.” Seldom can a constructed power meet a test of that stringency.

Hamilton's view paralleled a famous remark Chief Justice John Marshall would make later, in McCulloch v. Maryland (1819): “We must never forget that it is a constitution we are expounding.”Footnote ³⁴ Accordingly, Hamilton read “necessary” much more loosely than Jefferson had done: “necessary often means no more than needful, requisite, incidental, useful, or conducive to.” As a matter of dictionary definition, perhaps Hamilton's reading of the word is too loose, but that is not where the crux of his case lies. Jefferson's “restrictive interpretation of the word necessary is,” according to Hamilton, “also contrary to this sound maxim of construction: namely that powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country, its finances, trade, defence, etc. ought to be construed liberally in advancement of the public good.” This, Hamilton believed, is a universal rule, depending not at all on “the particular form of a government or on the particular demarcation of the boundaries of its powers, but on the nature and objects of government itself.” Hamilton restated with great concision the reservation against constitutionalism that we have already seen expressed by others before him. “The means, by which national exigencies are to be provided for, national inconveniences obviated, national prosperity promoted, are of such infinite variety, extent and complexity, that there must, of necessity, be great latitude of discretion in the selection and application of those means.”Footnote ³⁵ If the needs are so variable and unpredictable, then the aspiration to constitutionalism must itself be of questionable validity. Hamilton's doctrine of “necessary and proper” is an attempt to enshrine the extraconstitutional within the Constitution. It is easy to see in Hamilton's reading of the constitutional text that “boundless sea of power” that Jefferson feared. Yes, Hamilton would say, but that is the nature of the political beast. Better to incorporate all necessary power in the Constitution than to face the need for more or less regular violations of the Constitution, or more or less regular failures to respond to the genuine needs of the community.

Hamilton's development of Model III constitutionalism depends very little on standard modes of constitutional interpretation. He puts no weight on original intent and very little on text or original meaning. Rather, he engages in very abstract reasoning about the nature of government and of governmental powers. The core of his argument is contained in the following passage: “[E]very power vested in a government is in its nature sovereign and includes by force of the term a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.”Footnote ³⁶ For our purposes, the essential points here are Hamilton's claims (1) that all vested powers imply an end for the sake of which the power is vested, and (2) that the end of the vested power implies further powers as means toward attaining the end. Armed with this general construct, Hamilton reads the “necessary and proper” clause in the loose sense of “convenient” or “conducive to,” as we have noted above. This is the reading of the constitutional language that allows it to cohere with the general principle that governs all governmental power.

Hamilton has a plausible theory. Powers are granted for the sake of some end in view, and they are but means for the attainment of the end.Footnote ³⁷ Not all the powers or means that may conduce to a given end may be specified. No legislator is prescient enough to name all needed powers. Only the large powers pointing toward the large ends can be identified in a constitution. Moreover, the Hamiltonian principle almost guarantees that the Constitution contains within its four corners all the powers that may prove necessary for it to face the challenges that political life throws in its path. If some powers are granted to deal with the major political ends or political needs—the sort of ends that are identified in the preamble to the U.S. Constitution—then the Constitution will carry within it all the powers it requires to deal with extraordinary as well as ordinary circumstances. Hamilton's constitution contains all that Schmitt would require of it (and perhaps more). In effect, Hamilton's Model III constitution affirms empowerment as the rule, and limitation or absence of power as the exception.

Thus, Hamilton laid much less stress on power-limiting enforcement mechanisms than Jefferson did, but this is not to say that he ignored them entirely. Like Jefferson, he saw the executive veto as such a mechanism. More clearly than Jefferson, he saw the role of the courts as legitimately power-limiting. Where Jefferson seems to have seen judicial enforcement of the Constitution as particularly suited to the protection of individual rights, Hamilton in his well-known argument in Federalist No. 78 made a case for a more extensive power of judicial review. “No legislative act … contrary to the Constitution can be valid.”Footnote ³⁸ Of course, Hamilton's very broad principles for construing the constitutional powers of the government imply that the courts would seldom have occasion to invalidate laws on the basis of their exceeding the delegated legislative authority. Nonetheless, in his opinion on the bill to establish a national bank, Hamilton did identify some instances of legislation that would outstrip even his capacious reading of congressional power.Footnote ³⁹

He was also much less enthusiastic than Jefferson about adding a Bill of Rights to the Constitution and thus adding explicit protection for the rights of individuals. Indeed, Hamilton's Federalist No. 84 is one of the classic statements against the need for a Bill of Rights in the Constitution. Although he tended to oppose the addition of new rights protections, he did take note of protections in the original constitutional draft—for example, the protection of the right of habeas corpus, and the prohibitions against ex post facto laws and bills of attainder. “Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights and privileges would amount to nothing.”Footnote ⁴⁰ Thus, while Hamilton, compared to Jefferson, would downplay legalized protections of rights, he would not reject them altogether, nor did his Model III constitutionalism lack enforcement mechanisms for such rights as were protected.

Moreover, Hamilton favored the notion that the power to respond to extraordinary circumstances resided chiefly in the executive. In this respect, he moved back toward Locke's idea of the federative power, although he did not use that term and spoke of Locke's federative powers as powers of the executive. Hamilton noted that the very important part of Locke's federative power—the power of war and peace—had been granted to Congress by the Constitution, but he insisted that this, like foreign-affairs powers in general, is inherently an executive power. The Constitution had carved it out of the core of executive powers and given it to the legislature. The grant of power to the executive contains everything executive except what is explicitly given to the legislature. Nonetheless, the power of war and peace needs to be seen as an exception to the broad array of powers given to the president when Article II of the Constitution says: “The executive power shall be vested in a President of the United States of America.” And all exceptions should be read narrowly.Footnote ⁴¹ Hamilton so favored the executive not only because the text of the Constitution read as it did, but, again, for theoretical reasons. On his view, the executive possesses the institutional means to best respond to the extraordinary needs that may arise. It has unity, which allows secrecy, dispatch, and decision.Footnote ⁴² Thus, whereas Jefferson would deny legal power and go outside the Constitution to find it in the executive, Hamilton would find it in the Constitution, and particularly in the general grant of the executive power.

D. Model IV: Madisonian constitutionalism

James Madison, the reputed “father of the Constitution,” had collaborated with Hamilton in writing The Federalist Papers, a defense of the Constitution during the debate over whether to ratify it. Beginning in the 1790s, however, he also collaborated with Jefferson in resisting and opposing Hamilton's expansive executive-centered reading of the Constitution. These two facts serve to suggest that he was somewhere between the two poles, and that would be a perfectly correct inference. Like Hamilton, Madison rejected the Jeffersonian model, in particular the core combination of very strict construction and extraconstitutional appeals for extraordinary powers for emergency situations. But Madison's main line of argument against Jefferson was somewhat different from Hamilton's. In Federalist No. 49, Madison responded to a scheme proposed by Jefferson to deal with constitutional disagreements or perceived constitutional imperfections. The proposal went as follows: “Whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the Constitution or correcting breaches of it, a convention shall be called for that purpose.”Footnote ⁴³ This scheme is consistent with Jefferson's Model II constitutionalism: when constitutional issues arise, one should return to the source of constitutional authority, the people as represented in special conventions. Madison thought otherwise.

Although he agreed with Jefferson that the people were the ultimate source of constitutional authority, Madison did not think that regular or frequent “recurrence to the people” was a wise idea. One of his strongest objections is particularly relevant to Jefferson's attachment to supplementary extraconstitutional action. To appeal to the people “would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration, which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.” The same could be said of extraconstitutional but necessary actions: every such act “would carry an implication of some defect in the government.” Madison was particularly sensitive to the need for “veneration” toward government:

Every government, no matter how rational in itself, depends on “prejudices” that breed “reverence for the laws.” The Model II tendency to concede (more or less regularly) the inadequacy of the laws undermines that veneration, and for that reason, if no other, Madison held that it was not a good approach to constitutionalism.

On the broad question of constitutional interpretation, Madison was neither quite a strict nor a loose constructionist—he was looser than Jefferson, but stricter than Hamilton. Madison was serving in the House of Representatives when the debate over Hamilton's proposal for a national bank erupted. He led the opposition in the House. With great insight, he zeroed in on the theme that would be the centerpiece of Hamilton's expansive reading of implied powers. “Whatever meaning the [necessary and proper] clause may have,” Madison argued, “none can be admitted that would give an unlimited discretion to Congress.”Footnote ⁴⁵ Agreeing this far with Jefferson, he had his doubts about the language used by the bank's proponents to bring it within the scope of the constitutional clause; he did not think “conducive” and related terms carried at all the same meaning as “necessary.” He also called attention to the form of reasoning evoked by the bank's supporters. “To borrow money is made the end and the accumulation of capitals implied as means. The accumulation of capitals is then the end and a bank implied as the means. The bank is then the end and a charter of incorporation, a monopoly, capital punishments, etc. implied as means.”Footnote ⁴⁶ Madison saw, in other words, the escalator-like character of Hamiltonian reasoning.

In particular, he saw that the Hamiltonian reading modified the language and, he thought, the logic of the constitutional delegated powers:

In this paragraph lies the core of the Madisonian alternative to Hamiltonian loose construction. Although he shared Jefferson's concern that the logic of the constitutional powers as enumerated (and therefore, in principle, limited and controlled) not be lost, Madison did not agree that even one step beyond the enumerated powers opened up that “boundless sea of power” upon which Jefferson did not wish to embark. He saw a way—and indeed affirmed it as logically necessary to any government—to draw implied powers out of the Constitution while maintaining boundaries around those powers.

That way is not the Hamiltonian way, however. Madison called attention to powers that were implied as means to ends implied by the enumerated powers. He thus differed from Jefferson in downplaying “necessity” as the standard to be applied when judging constitutional powers, and instead emphasizing that the implied powers must be seen as means to the enumerated powers. He differed from Hamilton in denying that the implied powers are means to ends implied by the enumerated powers; instead, Madison held that they are only means to the enumerated powers themselves.

Madison was equally firm in rejecting Jefferson's version of strict construction. Jefferson had begun his opinion on the bill to establish a national bank by listing all the laws of the states that the bill would contravene. He seemed to believe that the conceded powers of the states must signal a limitation of some kind on Congress. Early in his speech on the bank, Madison explicitly denied this part of Jefferson's position: “Interference with the power of the states was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it although it should interfere with the laws or even the constitutions of the states.”Footnote ⁴⁸ Madison was not, as some would say, endorsing the same position as Jefferson.

Although Madison, arguing against the constitutionality of the bank, emphasized the limits of the “necessary and proper” clause, it is nonetheless clear that he saw it in a much more capacious way than Jefferson did: “The clause is in fact merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and as it were, technical means of executing those [enumerated] powers.”Footnote ⁴⁹ Madison recognized the dangers of the “doctrine of implication” for a government “composed of limited and enumerated powers,” but he still affirmed that powers are implied. He differed from Jefferson in so affirming; he differed from Hamilton with respect to the “rule of interpretation” that he thought properly governed this clause. Madison did not adhere to Jefferson's “absolutely necessary” criterion; he did accept implied powers that are “necessary and proper for executing the enumerated powers.”Footnote ⁵⁰ Accordingly, Madison never shared Jefferson's constitutional qualms about the Louisiana Purchase. He did understand the Constitution to impose limits on the powers of government, but he did not rule out constitutional construction, nor did he advocate rigid and fixed limits as Jefferson did. As Madison said in Federalist No. 51: “You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.”Footnote ⁵¹ Since the first task in constitution-making is enabling the government to control the governed (and, as Madison would no doubt add, enabling it to do all the other things governments must do), empowering government is the primary task; controls on government are important, but secondary. In Federalist No. 51, Madison expressed another point that he and Hamilton agreed on: one must properly “contrive the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”Footnote ⁵² The structure of the institutions was to be the chief reliance for securing effective and safe government, and in this Madison differed from Jefferson, who would have relied on limitations implicit in the grants of power in the Constitution. Madison and Hamilton agreed, up to a point, in rejecting Jefferson's strict constructionism and his willingness to go outside the Constitution to do what the Constitution did not provide for.

In addition to affirming the enumerated powers and a limited theory of implied powers, Madison also affirmed limits on the powers of government deriving from explicit protections of rights in the Constitution. Thus, although he was an early skeptic, Madison came around to the idea of a Bill of Rights; he not only drafted the first ten amendments in a form close to the one in which they entered the Constitution, but pressed unrelentingly for their adoption. He did this in the face of (perhaps surprising) indifference on the part of the Antifederalists, who had originally pressed for a Bill of Rights, and in the face of often open opposition from Federalists. Moreover, at the time of the debate over the 1798 Alien and Sedition Acts, Madison wrote the first real manifesto of First Amendment freedom of speech in his Virginia Report, a document written in defense of the Virginia Resolutions he had authored earlier against the Alien and Sedition Acts. Although he had come around to Jefferson's commitment to a Bill of Rights somewhat reluctantly, Madison came to see that the rights guaranteed in the Constitution's first ten amendments were an essential part of constitutionalism.

Like Jefferson, Madison was concerned that the rights protections not be mere “parchment barriers.” He wanted to insure that they had some teeth, that is to say, some enforcement mechanisms. In his major speech in Congress defending the adoption of a Bill of Rights, he followed Jefferson in appealing to the “independent tribunals of justice” as “the guardians of those rights.”Footnote ⁵³ In the same speech he also expressed his belief that the state legislatures would keep a watchful eye on the legislation of the United States, testing the latter against standards explicitly contained in the U.S. Constitution. In his Virginia Resolutions of 1798, he followed up on that suggestion by calling on the states to “interpose” themselves in order to resist the Alien and Sedition Acts. Of course, just what he meant by “interposition” has been a subject of controversy ever since; for present purposes, we need not settle that difficult question.Footnote ⁵⁴

Madison was also in the middle between Jefferson and Hamilton on the issue of the executive power. He took great exception to Hamilton's theory that the power of war and peace was inherently an executive power, and thus he disagreed with all the inferences that Hamilton drew from that theory. Madison never downplayed the importance of the executive, but he tended toward a view like that of Locke, who held that the legislature (especially in a republic) had a certain supremacy. Madison argued that the delegation of the power of war and peace to Congress represented a recognition that a power of such importance belonged to the most supreme and republican agency of government, the legislature. He conceded that in emergencies (e.g., surprise attack) the executive must act without congressional authorization, but he saw the need to repair to the legislature for authorization at the earliest possible moment. Madison thus rejected Hamilton's version of what has come to be called the theory of the “unitary executive,” a theory that puts great weight on the vesting clause of Article II of the Constitution: “The executive power shall be vested in a President of the United States.” Hamilton took that clause to be more than the identification of an office within the separated-powers scheme: it was, he thought, a grant of substantive power, the “executive power,” over and above the presidential powers enumerated in the subsequent clauses of Article II. On Hamilton's view, the “executive power” thus had a kind of essence or fixed character. Hamilton did not go into detail regarding how or where one ascertains the powers of the executive, but his implicit procedure suggests that he used the powers of the British king as the template for powers that were, in their nature, executive. This was a move already made by the great English jurist William Blackstone: in his Commentaries on the Laws of England (1765–1769), he had reinterpreted the powers of the king as executive powers, employing the conceptual apparatus suggested by Locke's and Montesquieu's constitutional theories.Footnote ⁵⁵

Hamilton noticed, of course, that some powers held by the king in England were explicitly given to the legislature in the American Constitution, and this led him to affirm as “the general doctrine of our Constitution” the notion that “the EXECUTIVE POWER of the Nation is vested in the President, subject only to the exceptions and qualifications which are expressed in the instrument.”Footnote ⁵⁶ As we have already noted, the exceptions are to be taken narrowly, leaving to the president most of the power over foreign relations that the English king possessed (indeed, in this respect, the Hamiltonian president exercises something close to prerogative power).

Despite the fact that he and Hamilton later clashed over the nature of executive power, Madison apparently was the first to call attention to the difference in wording between the vesting clauses of Article I (“All legislative Powers herein granted …”) and Article II (“The executive Power shall be vested …”). On Madison's view, the difference pointed to the existence and possession by the president of something like an executive-power-in-itself. But Madison's notion of this power was more like Locke's notion of the executive per se; that is, it was a power to see to the execution of the laws as contained in the president's Article II duty to “take care that the laws be faithfully executed.” Hamilton added to the executive power per se the powers Locke had identified as federative and prerogative, and dubbed the whole “executive.” Madison held that these meta-executive powers did not belong by nature to any branch of government, and that the actual constitutional distribution must be followed.

E. Summary

To summarize, then, Jefferson, Hamilton, and Madison differ from each other along two dimensions: first, regarding whether all necessary power is or should be in the Constitution; and second, regarding who should exercise the powers to deal with extraordinary circumstances. We are left with a crucial question: How do the Jeffersonian, Hamiltonian, and Madisonian models of constitutionalism bear on our main question, “What should constitutions do?” In particular, what should they do in an age of terror? The three models might be compared and assessed on at least two different dimensions:

(1) As construals of the American Constitution: Here, as a reading of the text, Madison's model seems best, an unsurprising conclusion given his role as “father of the Constitution.” The constitutional doctrines of Jefferson and Hamilton reveal in their different ways the misgivings their authors had about the Constitution as adopted.

(2) As responses to the problem of the “exception” as identified by Schmitt: Perhaps the first thing that must be said is that neither Jefferson's Model II nor Hamilton's Model III are anything like Schmitt's polemical vision of liberal constitutionalism. In their different ways, both models are capable of coping with the extraordinary or emergency situations on which Schmitt places so much emphasis. Madison's Model IV comes closest to Schmitt's “liberal constitutionalism,” for Madison rejects the chief means by which Jefferson and Hamilton open the legal order out to the extraordinary. Like Hamilton, he commits to remaining within rather than going outside the law; like Jefferson, he rejects the extremely elastic Constitution that Hamilton affirms in order to remain within the legal order. Madison's Constitution is not so restrictive as Jefferson's, but Madison still affirms real limits that, in theory, could hamper the government from dealing with emergencies. For example, in his rejection of the Hamiltonian doctrine of implied powers, he says: “Had the power of making treaties … been omitted, however necessary it might have been, the defect could only have been lamented or supplied by an amendment of the Constitution.”Footnote ⁵⁷ Of course, that power was not omitted, and Madison can argue that his doctrine of implied powers is adequate, for the Constitution grants all major powers necessary to meet the real needs of governance—even emerging and unexpected needs.

In any case, we can recognize Madison's Model IV constitutionalism as the most balanced of the models we have discussed, in terms of its attempt to fulfill the complex mandate supplied by our preliminary answer to the question of what constitutions should do. (Recall that in Section I we suggested that constitutions should limit and channel power and at the same time should permit and foster those actions required to achieve the common good.) But Model IV also has some obviously problematic features and leaves some open questions: (a) Can we plausibly say of the American Constitution, or of any effort to draw up a Model IV constitution, that it contains all the large grants of power that would be necessary? (b) Is a fundamentally legislature-centered model sufficient to meet the emergency or extraordinary needs that Schmitt points to and that the threat of terrorism regularly poses? (c) Is the Madisonian Model IV constitution as we have so far discussed it actually sufficient to meet the aim of setting limits of various sorts on governmental power in the name of individual rights? And to the extent that it can set such limits, does this tend to prevent it from meeting the needs posed by extraordinary circumstances?

These questions are perhaps best considered in light of the concrete possibilities and needs raised in our contemporary discussions of constitutionalism in the face of the challenge of terrorism. In what follows, we hope to accomplish two things. First, we hope to show that our four constitutional models serve as useful paradigms for organizing, classifying, and understanding the various positions taken by commentators and official decision-makers in recent discussions. Second, we hope to use the current discussions to examine further the relative merits of the models, with an eye to concluding whether constitutionalism is viable in difficult times, or whether Schmitt is essentially correct.

A. Model I: Contemporary Whigs

The Whig position begins by arguing that executive power ought to be constrained through strict construction of relevant constitutional provisions, implying that the executive should not have plenary prerogative power. Pushing the traditional Whig position further, the contemporary Whigs argue against the prerogative power by explaining that it is nothing more than a myth.Footnote ⁵⁸ They argue that America's political heritage and its centuries-old constitutional system explicitly reject presidential prerogative. Although they recognize that many past presidents have exercised the prerogative power, these Whigs argue, just as John Marshall did, that “[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”Footnote ⁵⁹ In order to establish the unconstitutionality and illegitimacy of the presidential prerogative, contemporary Whigs stake their argument on three primary grounds. First, they argue that the American Constitution presupposes a constrained executive, departing from the historical British model. This departure leads to their second argument, which reasons that the Framers feared concentration of power in the executive branch due to the potential dangers it posed. Third, they argue that the provisions of the constitutional text, as well as the arguments of the drafters, exhibit an explicit intention to prioritize Congress over the executive.

We turn first to the contemporary Whigs' argument that the American Constitution presupposes a complete break from the British model of executive power. Most indicative of this break is the fact that the British model concentrated the war power in the king.Footnote ⁶⁰ Whereas the British king had the entire war power, contemporary Whigs argue that the United States Constitution instead vests this power in Congress. They point to Article II and argue that it only gives the president charge over the military “when called into the actual Service of the United States.”Footnote ⁶¹ Article I, they explain, invokes the war power when it allots Congress the power to “declare War [and] grant Letters of Marque and Reprisal.”Footnote ⁶² Even if one merely grants that the Constitution does not vest all war power in the executive, this would provide enough ground for contemporary Whigs to conclude that the American model breaks from the executive-centered British war powers model. Decades before the current War on Terror, Raoul Berger took this argument a step further in his book Executive Privilege: A Constitutional Myth (1974) and explained that not only does the Constitution break from the British model, but the American Framers “purposely cut all roots to the royal prerogative…. A supraconstitutional residuum of powers not granted expressly or by necessary implication was not only furthest from their thoughts, but avowal of such a residuum would have affrighted them and barred adoption of the Constitution.”Footnote ⁶³ Following Berger's reasoning, Arthur Schlesinger commented in 1989 that Madison's Helvidius “denied that the powers of making wars and treaties were inherently executive. This ‘vicious’ doctrine obviously had been ‘borrowed’ from Britain. The fact that these were royal prerogatives in Britain did not make them presidential prerogatives in the United States.”Footnote ⁶⁴

Instead, the contemporary Whigs maintain that the executive must be constrained by the rule of law. Legal scholar David Luban points out that this rule of law is in direct opposition to the model of war, which provides “much freer rein than that of law….”Footnote ⁶⁵ The model of war gives the executive more prerogative power since it does not impose the same stringent procedural standards, the same protection of human rights, the same evidentiary guidelines, or the same presumption of innocence that the rule of law requires. Luban contends that the executive must abide by the rule of law, which places legal limits on presidential action. This stance against the routinization of the war model is a stance against the normalization of prerogative power, leaving the executive to act inside—and only inside—the explicit legal code. Since the U.S. Constitution presupposes a stark break from the British model and the war model, the contemporary Whigs argue that the American executive cannot claim the prerogative power sua sponte.

On the view of the contemporary Whigs, it is precisely this sua sponte concentrated power that the American Founders feared. For this line of argument, they begin with the framing debates and argue that “[a] close look at the Founders' conception of the executive power will disclose its meager scope.”Footnote ⁶⁶ The primary reason why the Founders limited executive power was that they wanted to counter presidential ambition, presidential glory-seeking, presidential quests for immortal fame.Footnote ⁶⁷ Berger explains that in order to limit presidential ambition the Founders carefully defined and confined executive powers by including various enumerated powers in Article II. Since these enumerated powers trump the vesting clause's vague grant of executive power, Berger maintains that interpretations that prioritize the vesting clause “pervert the design of the Framers….” He explains that the function of the vesting clause is merely transitional, providing “no more than a label designed to differentiate presidential from legislative functions….”Footnote ⁶⁸ The clause does not imply a radical shift to extensive executive powers, Berger concludes.

This Whig reading of Article II renders the vesting clause not only unnecessary, but also trivial. If this reading is correct, then it does not explain how the Whigs can simultaneously maintain that the drafters of the U.S. Constitution were careful with their language but careless with their vesting clauses—or so devotees of Model III constitutionalism would argue.

In her amicus brief in the 2004 Rumsfeld v. Padilla case, former Attorney General Janet Reno follows Berger's lines of reasoning and counters the argument that the president has the prerogative power to detain American citizens without the benefit of the criminal justice system. Reno denies that the executive has this prerogative power and argues that such a power is not only illegitimate but also unnecessary. She argues that both the Constitution and congressional legislation provide the president with myriad resources to combat domestic terrorism, eliminating the need to “resort to the extraordinary power claimed … by the President.”Footnote ⁶⁹ Even though this framework may prevent the president from efficiently responding to novel emergencies, Reno explains, “this is an inherent consequence of the limitation of Executive power.”Footnote ⁷⁰ That is, Reno acknowledges that domestic terrorism may create difficulties, yet these pale in comparison to the dark possibilities created by overly concentrating power in the executive.

The contemporary Whigs take issue with Alexander Hamilton's executive-empowering argument in his letters from Pacificus. Berger argues that Hamilton's interpretation “does violence to the … clear intention to create an Executive of rigorously limited powers.”Footnote ⁷¹ Further, Berger argues that this position is dissonant with Hamilton's arguments in the Constitutional Convention of 1787 and during ratification. Schlesinger goes so far as to appeal to the authority of an earlier Hamilton against the later Hamilton, explaining that during the Constitutional Convention, Hamilton argued in favor of vesting the war powers in the Senate, with the executive only having war powers after a war had been authorized or begun.Footnote ⁷² Moreover, during the ratification process, Hamilton argued that executive power ought to be confined, defined, and limited.Footnote ⁷³ Berger eventually concludes, “It is the unmistakable lesson of history that the President was intentionally given a few enumerated powers, no more.”Footnote ⁷⁴

Additionally, contemporary Whigs maintain that the executive's role is a limited one, because according to the constitutional text, the executive's role is secondary to that of the Congress. The Constitution's longest section is devoted to the Congress. The section on the executive branch follows the one on Congress, both in constitutional structure and power. Therefore, explains the legal scholar Louis Henkin, the executive's powers are “more modest than those bestowed upon Congress,” making the president the executive-agent of Congress.Footnote ⁷⁵ Berger utilizes a similar structural priority to argue that Hamilton's Pacificus argument was backward: congressional power is not carved out of executive power, but executive power derogates from congressional power “eked out slowly, reluctantly, and not without limitations and safeguards.”Footnote ⁷⁶ Since the Constitution grants immense power to Congress, the president is “severely limited … designedly subordinate to Congress….”Footnote ⁷⁷ These contemporary Whigs conclude, then, that the Constitution presupposes congressional priority in order to forestall concentrated power in the president.

Other latter-day adherents of Model I, like the American Civil Liberties Union (ACLU), focus their attention on governmental limitations on behalf of the rights of individuals, rather than on separation-of-powers concerns. They sometimes treat rights as “absolutes” and are unwilling to weigh and balance the goods to be achieved by limiting rights against the cost to liberty of these limitations. They tend not to be pragmatists. They would treat terrorists and other enemies as criminals, to whom all the normal constitutional safeguards apply. As they see it, all the rights and protections specified in the Constitution apply with equal force in time of war as in time of peace.Footnote ⁷⁸

B. Model II: Contemporary Jeffersonians

The Jeffersonian position has a more relaxed grip on executive power than the Whig position. It allots the executive prerogative power in order to meet unforeseen threats to the civil order, while also limiting the executive through a strict adherence to the explicit legal order. Contemporary Jeffersonians follow their classical counterparts due to an overwhelming fear of excessive power located in the executive. They argue that if the president may constitutionally use the prerogative power, then the president has the incentive and ability to normalize broad grants of power. Yet they disagree among themselves about how the executive's extraordinary uses of power are to be checked or monitored. Some look mainly to Congress, others to the people.

The foundational motive for the contemporary Jeffersonians lies in a fear of trivializing emergency power. That is, once an executive uses emergency power, which substantially enlarges executive power, that executive will look for additional emergencies in order to wield the power again. However, emergencies are few, which implies that the executive might feign emergencies in order to exercise additional power. When the emergency becomes normalized and integrated into the rule of law, contemporary Jeffersonians argue, the executive ceases to be a democratic leader and instead becomes a monarchical dictator. Therefore, normalizing emergency power would lead to a reprehensible and unstable legal order.

In order to deal with these theoretical possibilities, legal scholar Mark Tushnet, in his essay “Emergencies and the Idea of Constitutionalism,” creates a conceptual framework for dealing with emergency power through an analysis of the incorporation of the war power. He argues that the best way to meet wartime needs is to recognize that war creates a fundamental shift, requiring extraordinary exercises of power by governmental actors. Therefore, war suspends the normal rule of law. Without the technical requirements of the legal order, the government can efficiently respond to grave threats and deploy military forces without the technical delay imposed by law's procedural requirements.

Tushnet wants to separate executive war powers from the executive's day-to-day powers, since normalizing war powers will make war a normal activity. He explains that if the executive's extraordinary powers are read into the Constitution, then the extraordinary power becomes ordinary and governmental actors will push for even greater grants of extraordinary power. He cautions: “The temporary will be made permanent, threatening civil liberties well beyond the period of the emergency.”Footnote ⁷⁹ Therefore, Tushnet argues that war requires a fundamental shift in the distribution of power. By permitting the executive to exercise power outside of the Constitution, the hope is that the power will remain extraconstitutional, and therefore extraordinary.

Yet this is precisely where Tushnet parts ways with other Jeffersonians. In order to keep the extraordinary emergency power out of the normal lawmaking sphere, Tushnet relies on a mobilized citizenry. He explains that alarmists will continually decry the executive's use of the prerogative power, forcing other citizens to closely monitor governmental actions.Footnote ⁸⁰ This continual monitoring will frustrate executive power grabbing such that the executive will seek other nonemergency means, which are guarded by the separation of powers and federalism.

Other contemporary Jeffersonians do not rely as exclusively on the will of the people. Instead, they look to the other branches to check the abuse of emergency power. For example, Mark Brandon argues that Congress ought to be far more diligent in protecting its powers from executive overreaching. He takes very seriously the fact that the United States has been in a war or warlike conflict for more than 80 percent of its existence, making the United States a warrior state where foreign wars occur while domestic conditions are relatively normal.Footnote ⁸¹ Since the warrior state implies extensive executive power, Brandon argues that Congress ought to take an affirmative role in defending its constitutional power. Should the executive push to increase his power, Congress ought to reply by passing legislation that counters the executive's play for power. Yet Brandon laments that Congress has failed to live up to this adversarial role, and has instead conceded power to the executive, making future contestations of power far more difficult to win.

One of the most prominent voices in the current discussion is also very close to Jefferson. We refer to Judge Richard Posner of the Seventh Circuit Court of Appeals, whose 2006 book Not a Suicide Pact recognizes that extraordinary times may call for extraordinary actions, which should not be enshrined in the ordinary law. Posner would countenance some of the more controversial aspects of the War on Terror—coercive interrogation, rendition, intrusive surveillance—but he would, for the most part, cordon these things off from the ordinary law. In effect, they would be allowed, but not endorsed. He thus calls for a very restrained role for courts in these matters, for courts find themselves having to say yea or nay to the legality of the practices that come before them, and that is what Posner does not want them to say. He does not dwell on the issue of who is to check extraordinary power; rather, as a jurist, he stresses the inadvisability of the judiciary injecting itself into the issue on either side.

In the end, the contemporary Jeffersonians agree that ordinary presidential power needs to be understood in a limited way; yet, at the same time, they acknowledge that the executive may require powers that were unforeseeable at the time of the Constitution's drafting, and thus they would create a prerogative power that intentionally stands outside the normalized legal order. By keeping this prerogative power outside of the normal, peaceful operation of government, these Jeffersonians attempt to separate normal governmental power from exceptional power.

C. Model III: Contemporary Hamiltonians

Unlike the Jeffersonians, modern-day Hamiltonians worry more about the existence and security of the nation than about executive overreaching. They argue that the government, and especially the executive, ought to have substantial power to stop potentially deadly attacks while they are still inchoate. In effect, contemporary Hamiltonians argue that the Whigs and Jeffersonians have priorities that are pathologically inverted. They hold that these alternate visions of constitutionalism set day-to-day lawmaking above the higher law of national survival; these visions value constitutional means above constitutional ends.

Contemporary Hamiltonians focus on the vast grant of power in the vesting clause of Article II. Joseph Bessette and Gary Schmitt argue, for example, that the Framers carefully created the vesting clause in order to bind the chief executive to fulfill various important duties. Bessette and Schmitt develop their creative hermeneutic by closely reading Madison's notes on the Constitutional Convention and attending to Gouverneur Morris's role in drafting the vesting clause. They argue that Morris explicitly changed the language of Article II from powers to duties, in order to differentiate discretionary powers from affirmative duties and thus to strengthen the executive by making his tasks obligatory rather than discretionary. For example, they explain that Morris insisted on changing a draft clause that stated that the executive “may recommend to [the legislature] … such measures as he shall judge necessary, and expedient.” Morris wanted to replace “may” with “shall,” in order to “make it the duty of the President to recommend, [and] thence prevent umbrage or cavil at his doing it.”Footnote ⁸² They argue that Morris's action here “is an explicit recognition of the difference between a discretionary power and a positive duty.”Footnote ⁸³ Capitalizing on Morris's argument, Bessette and Schmitt emphasize the duties imposed by Article II rather than the powers conferred by it, and they conclude that the duties of the executive “lie at the heart of the constitutional presidency.”Footnote ⁸⁴

This interpretation of Article II is not merely a change in semantics, but a fundamental shift in conceptualizing executive power. Not only do the duties take priority and convey a certain necessity for the executive to exercise vigorously the granted powers, but once Article II is read as consisting primarily of duties, the duties become the grounds for the powers granted and for any other powers that may be necessary or suitable for fulfilling the duties. The duties set the ends, and the powers, granted and implied, are conceived as means. Bessette and Schmitt thus interpret Article II much as Hamilton interpreted the “necessary and proper” clause.

Their interpretive principle implies that the explicit powers in the Constitution are merely examples of powers that the executive has, rather than comprising a comprehensive list of such powers. If this reading is accurate, then the executive may utilize almost any conceivable power to discharge effectively the duties incumbent upon his office. At the same time, however, this creative interpretation implies that the power-conferring provisions of Article II are redundant, merely detailing some possibilities of what the executive might do to uphold the laws of the land.

Another neo-Hamiltonian is John Yoo, now a law professor at UC Berkeley, but formerly a Justice Department official heavily involved in developing the Bush administration's doctrine on the War on Terror. Yoo goes beyond Hamilton, who saw war-making as an inherently executive function, but conceded that important parts of the war power had been given to Congress, thus carving out exceptions from essentially executive powers. In particular, the power “to declare war” was given to Congress, and Hamilton admitted that this set a definite limit on executive powers. Scholars tell us that even at the time of the founding, the practice of issuing formal declarations of war was becoming far less common, but what was then only a nascent trend of using force without declaration of war has since become almost a matter of course. The last time the United States actually declared war was World War II, and since then the U.S. has used military force in Korea, Vietnam, Grenada, Haiti, Iraq (twice), Kosovo, Afghanistan, and elsewhere—all without declarations of war. This nonuse of the declaration of war, with Congress's explicit or implicit approval most of the time, led the Bush administration to its ultra-Hamiltonian approach: its belief that the president, through his executive and commander-in-chief powers and because of his institutional competence, has the power to commit to the use of force on his own authority and to determine what is necessary to the effective use of force. In his 2005 book The Powers of War and Peace, Yoo argues that the power to declare war is not actually a power to commit to the use of force, but merely a power to change the nation's official legal status both externally and internally.Footnote ⁸⁵ Such a change in status has many legal consequences, but is not necessary for the use of troops, which the president may initiate on his own authority. This is not to say that Yoo defends completely unchecked presidential power. Congress has the power of the purse and can use it to assert itself against unilateral presidential actions if it so desires. The Constitution Yoo outlines is beyond Hamiltonianism in that it gives the president more independent authority than Hamilton did, and it reads the Constitution as mandating a pervasive “struggle for control” of foreign and military policy between the president and Congress. In this struggle, as developed by Yoo, the executive branch has a great structural advantage, for it can act with a kind of dispatch and decisiveness that it is very hard for Congress to match. Thus, the executive can commit military forces to the field, and it is up to Congress to decommit them—a very difficult thing for Congress to do, as the debate on the Iraq military surge showed.

Yoo's position is one that pays great attention to one half of the issues raised by the problem of constitutionalism—the need for extraordinary powers to deal with extraordinary circumstances, and like Hamilton and Madison, Yoo seeks to incorporate those powers inside the Constitution. But he almost totally depreciates the other half—the aspiration to constitutionalism itself, the sober caution the American Founders exercised when they set out to build in safeguards against extraordinary executive powers. As John Locke once said, good and wise kings do not themselves require to be checked, but their extralegal activities are precedents and dangers in the hands of the less-good and less-wise rulers who will almost certainly follow them. Thus, even if one is inclined to empower a particular president, as Professor Yoo was when he credited George W. Bush as a good and wise ruler, we still need to be cautious in arming a president with tools that can be badly misused by a future president in other circumstances.

Many of the contemporary Model III constitutionalists go to great lengths in attempting to allay the fears of those less sanguine about the misuses of executive power. Law professors Eric Posner and Adrian Vermeule argue, for example, that executive decisions rendered in the heat of the moment do not always have negative precedential effects. They hold that anti-Hamiltonians (Jeffersonians and Whigs) argue against broad grants of executive power for two reasons: ratcheting and fear. First, anti-Hamiltonians argue against even small grants of emergency executive power because they assume that the executive will exploit such a grant and use it to expand his power by artificially creating new emergencies. Then, when the executive has attained more power, he will repel calls for diminishing his power and will instead seek to increase his power even further. Posner and Vermeule label this situation a “ratcheting effect,” indicating unidirectional and irreversible change. They argue that ratcheting is improbable due to a status quo bias in the legal system, which will tend to work against a ratcheting effect because there are institutional mechanisms that can insert sunset provisions into emergency actions.

Posner and Vermeule next attack anti-Hamiltonian arguments concerned about the clouding effect fear has on executive judgment, which they refer to as the “panic thesis.” This thesis states that “because of the danger of panic, constitutional constraints should not be relaxed during emergencies.”Footnote ⁸⁶ Advocates of this thesis argue that institutions should be structured to manage effectively the panic that is sure to arise during emergencies, and to prevent governmental actors from acting irrationally due to fear. Posner and Vermeule argue that this position is counterhistorical because the executive and legislative branches have been the rational, active “champions of civil liberties during emergencies in American history….” Even during times of panic, the executive and the legislature act rationally, not impetuously as the panic thesis proponents claim. Therefore, Posner and Vermeule imply, emergency restrictions should not limit presidential and legislative actions but empower them.

While Posner and Vermeule argue that emergency-induced fear does not produce irrational decisions, other contemporary Hamiltonians argue that fear actually produces very rational decisions. In his 2007 book The Terror Presidency, Jack Goldsmith, former United States Assistant Attorney General for the Office of Legal Counsel in the Department of Justice, describes various circumstances where executive officials operated under two types of fear: the fear of not doing enough and the fear of doing too much.Footnote ⁸⁷ In the aftermath of terrorist attacks, decision-makers fear that their decisions will be insufficient to prevent future attacks, and that they consequently will be blamed for future catastrophes. Conversely, they fear that their proactive decisions will go further than necessary and will needlessly infringe on civil liberties. Goldsmith's account swings back and forth between these two poles, portraying the fear that undergirds everyday operations in the executive branch.

Goldsmith argues that fear inside the executive branch also leads actors to be overly legalistic. Fear of future prosecution for inaction or overreaction forces executive officials to comply, as rigorously as possible, with the technical details of the law. However, since it is inevitable that the law will not prefigure all of the executive's desired actions, there is a strong incentive to read the law as creatively as possible, in an attempt to move desired actions under the legal umbrella. This kind of creative legal reasoning, which Goldsmith accuses Yoo of having practiced, produces a very ambiguous situation: the impression of lawfulness that may rest on a greater or lesser distortion of the law.

Although Goldsmith voices reservations about the ideas of other contemporary Hamiltonians and hyper-Hamiltonians like Yoo, he nonetheless remains firmly in the camp of Model III constitutionalism, for he argues that the executive ought to have vast powers to deal with the daily threats to the safety of the nation. Further, he agrees that extraordinary executive power ought to be vested in the ordinary Constitution. He points out that past executive actions by respected presidents like Franklin D. Roosevelt have been extraordinary, though legally approved; indeed, such decisions have often been made behind closed doors, with little information provided to the public. In order to temper executive overreaching, Goldsmith, like Hamilton himself, looks to the political process as a source of safety from too much power.

D. Model IV: Contemporary Madisonians

Contemporary Madisonians fear future dangers as much as Hamiltonians do. Therefore, they condone extensive governmental power to deter, prevent, and repel attacks against the country. At the same time, however, they also fear executive usurpation of broad powers, as do the contemporary Whigs. This leads Madisonians to deny that the president has sua sponte prerogative power. In order to accommodate both of these inclinations, modern-day Madisonians look to the legislature as the seat of authorization and control of extraordinary power. In his 2006 book Before the Next Attack, Bruce Ackerman, one of the most active contemporary Madisonians, looks specifically to Congress for approval of emergency powers; he displays his Madisonian hesitations about an infinitely flexible Constitution by constructing a complicated system to prevent a ratcheting of power through long-term use.

Unlike the Jeffersonians, Ackerman finds within the Constitution implied power for Congress to declare emergencies and authorize the executive to exercise extraordinary powers. His framework begins with a decision to utilize emergency powers, requiring at first only a regular majority of Congress. After this initial grant of power, Congress must reauthorize the emergency powers every two months, but must do so via an ever-larger majority each time: after two months, 60 percent of the Congress must approve; after four months, 70 percent. Finally, after six months, 80 percent of Congress must agree, and must continue to do so every two months thereafter. Ackerman's reason for proposing the escalating threshold is to forestall the routinization of extensive executive power. Additionally, the two-month hiatus between approval votes encourages members of Congress to quell their passions and base future votes on reason, rather than passionately acceding to presidential or popular demands. Ackerman believes that the cooling-off period will make it very difficult, if not impossible, to retain supermajorities after the immediacy of an emergency has vanished. The representatives will eventually push for a return to normalcy.Footnote ⁸⁸ And if they do not, that must signify that there are persuasive grounds for remaining in emergency mode.

Although there are many details to quibble about in Ackerman's proposal, its most deeply rooted problem threatens to throw it completely off-track. Ackerman anticipates his plan being adopted as a piece of regular legislation, mostly because he does not imagine that it could survive the constitutional amendment gauntlet. He hopes that it will or can achieve something like unofficial constitutional status by being accepted by the nation as “higher law” rather than ordinary legislation. Ackerman requires, but cannot guarantee, such a status for it. Otherwise, Congress can, by a simple majority, override any law it has made requiring a special majority. The fact that one Congress cannot bind a future Congress (or even itself at a later time) by ordinary legislation means that there is no way to enforce the escalator provision against a simple majority that believes in what it wants to do (for example, maintaining emergency powers, detaining prisoners without habeas corpus, or engaging in otherwise illegal surveillance).

Ackerman's plan is not workable, but it admirably displays many of the features of Madisonian Model IV constitutionalism. It affirms the expansive character of the Constitution and its reservoir of power to deal with emergencies. It puts the power and the onus for authorizing extraordinary action on Congress, and it seeks to promote a periodic, deliberate, and cool-headed reconsideration of extraordinary powers and actions.

Probably the most significant Madisonian voices in recent constitutional thinking, however, have been those coming from the Supreme Court. By saying that these voices are Madisonian, we are affirming that they find the necessary powers in the Constitution, but hold Congress to be the main body to authorize policy on emergencies and the president to be the agent to execute the policy. The line between policy and execution is, of course, never quite a bright and shining one, but the disagreements that have emerged among the justices of the Supreme Court have largely been ones of interpreting congressional statutes. They have accepted Congress as the voice that must be deferred to. We will not dwell on these disagreements—they are technical and would be very tedious to dissect.

The disagreements among the Madisonians raise a very pointed question, however: What does it signify that justices using the Madisonian paradigm come to different conclusions—such as that the original Bush military tribunals were—or were not—legal? A candid reading of the various opinions, such as in Hamdi (2004),Footnote ⁸⁹Hamdan (2006),Footnote ⁹⁰ and Boumediene (2008),Footnote ⁹¹ leads to the suspicion that the different justices are interpreting the various statutory provisions in light of some ulterior or additional considerations beyond the mere legal text. The Court split 5-3 in Hamdan over whether the military tribunals meet the process requirements contained in congressional legislation. The split between the five justice Hamdan majority and the Hamdan dissenters indicates that there are, in fact, two variants of Madisonian constitutionalism.

The Hamdan dissenters, Justices Scalia, Thomas, and Alito, accept the basic Madisonian position that Congress must be the body to set broad policy on war and peace. But the Hamdan majorityFootnote ⁹² goes beyond that and notices that American constitutionalism not only distributes authority among different ruling bodies, but also contains a pledge to treat all persons as rights-bearers—it makes a promise not to deprive persons of life, liberty, or property without due process of law. The Hamdan majority, even when it does not invoke this constitutional provision, is moved by sensitivity to this pledge. Thus, they have extended the habeas corpus right, they have rejected tribunals where due process rights are denied, and they have insisted that detainees have a right to a hearing before a neutral party.

Does this insistence on honoring the due process commitment make the members of the Hamdan majority naïve constitutionalists, on the order of the Whigs? The answer, we think, is no. The first thing that must be said of the majority's concern for due process is that it is in the Constitution—twice. Due process is part of the law the courts—and Congress and the president—are to adhere to. The commitment to due process does not mean, however, that the government is required to adhere to the very strict procedural requirements laid out in the Bill of Rights. Due process is looser and more flexible than that. As the Supreme Court said in a 1909 case: “What is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation.”Footnote ⁹³ The Court majority has treated due process accordingly. It requires a hearing before a neutral officer, but it does not require a jury trial, for example.

This approach is full-blown Madisonian constitutionalism, that is, a constitutionalism that looks to Congress as the main bearer of extraordinary powers and holds the government to be committed to recognizing all persons it deals with as rights-bearers. It contains the main elements of Madison's own position on implied powers as developed in his speech on the bank bill, his position on executive power as developed in Helvidius, and his position on rights as developed in the Virginia Report.